What is the state attorney general's position on incidental movement in a simple kidnapping case?

The Attorney General states that "this issue is close" and acknowledges that "the trial court should have given the jury the bracketed language regarding incidental movement in the simple kidnapping 'one strike' allegation." However, the Attorney General cites People v. Dieguez (2001) 89 Cal.App.4th 266 at page 276 and asserts that there is no " 'reasonable likelihood' that the jury misconstrued or misapplied the law." The Attorney General notes that the "more than merely incidental" language was included in the jury instruction on the aggravated kidnapping allegation (CALCRIM No. 3175), and that during closing arguments, defense counsel told the jury that, for the simple kidnapping allegation, it should consider whether the movement was "merely incidental to the commission of forcible rape."